Daniel Matson, Both Buyer and Seller in Flint, MI

Bait & Switch? Serious question of legality and ethics. What are my options?

Asked by Daniel Matson, Flint, MI Fri Dec 12, 2008

I put an offer in of 20k on a 49k REO listing in Nov. On 12/05 my Realtor was told the amount was accepted, however, the EMD will be $1000 and not $300 as proposed plus we need to close by 12/20. We accepted the terms on 12/08 and due to the time constraint we arrange and completed for appraisal and inspection 2 days later only to find out that the seller was now reviewing better offers.

It turns out our offer was accepted a few days after the prop was reduced to 29k and that over the weekend a slue of better offers had come in. Now the selling agent claimed that he had not accepted our offer even though we sent a copy of our EMD check for $700 more than the original offer per his request. He later stated that his seller did authorize the counter offer but that he was obligated to pass along any new offers even though we accepted their counter.

It appears as though the selling agent sat on our paperwork for a few days while better offers rolled in due to premature acceptance.

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Cameron Piper, Agent, Forest Lake, MN
Tue Dec 16, 2008

The listing agent has an obligation under the realtor's code of ethics to submit all offers to his seller.

The problem you are facing is because it appears (although isn't clear) that you acted without a signed offer. The bank may have verbally accepted your offer and even intended to keep their word, but when other offers came in that were better they moved ahead with them since they didn't have a sign and finalized deal with you. Don't assume that the listing agent sat on the paperwork - it often takes banks weeks to get things signed, a couple of days would be a quick turn around.

Cameron Piper
Web Reference:  http://www.campiper.com
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Todd Lands, Agent, Saline, MI
Sat Dec 13, 2008
Thanks for bouncing back in, it is nice to know you hear us and appriciate our thoughts. As I mentioned before REALTORS stand tall with their ethics, I would like to think all of us are out to do good, fair, & honest business. I hope you can feel that way soon.
Good Luck, Happy Holidays, & Happy Trails to you!
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Daniel Matson, Both Buyer And Seller, Flint, MI
Sat Dec 13, 2008
Thanks to everyone that replied.

I was aware of the risks for not having the signed acceptance. It looks as though the seller is dragging their feet and has not accepted any offers which I believe means that we are their best bet to close by 12/20 as they wanted.

As it was suggested I am already on to the next ones and I'm taking steps to make sure this never happens again. All of your advice has been very useful and while I understandably do not have any legal bearing I do feel that the seller's agent has been trying to pull a fast one by calling my Realtor a liar (in front of his clients and manager) that he never gave us the counter and then under threat of legal, board of Realtors, and BBB filings he admitted that his seller did authorize the counter. So the whole thing just stinks.

Thanks for the advice.
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Donald Mituz…, Agent, Kaatonah, NY
Sat Dec 13, 2008
Sounds like a fairly common situation. I've seen it many times. Here's my view.

A listing agent has a fiduciary duty to the seller to present any and all offers right up until closing. In most states unless you have signed contracts to purchase, a seller can accept any offer they want. I'm not sure if you were working with the listing agent or had a buyer agent representing you, but it seems like things may have been a bit fuzzy.

If this does not go through, I would suggest working with an agent who will email any offer you put in to the listing agent and BCC you. This way you know exactly when your offer was sent. Have the agent forward any reply from the listing agent so you know when they responded. They should also carry out any negotiations through email the same way. A confirmation of acceptance of an offer with all terms and conditions will also help keep things clear to all. I've been doing this for years and it helps avoid any problems later if it's in writing. This does not mean that the only communication is by email. Some agents are less responsive to email so the phone is a must. Letting the agent know by phone that you have sent an offer etc via email insures the listing agent is checking their email.

I had a situation a number of years ago where an agent accused me of not presenting her offers. Her opening offer of $550k on a $715 listing was way too low to counter. She raised it to $575k and still received no counter. At that point she accused me of not presenting her offers. As this was an estate with 2 out of state heirs I emailed all offers to them as well as their local attorney. When I presented this evidence it stopped this silly accusation in it's tracks. The property did end up selling for $675k which shows their offers were way too low. I've also avoided problems on which window treatments were included, washers and dryers and a lot of other included in sale items by having it in a written email.

Don Mituzas
Licensed Associate Broker
2008 Putnam County Association of Realtors "Realtor of the Year"

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Kathy Toth T…, Agent, Ann Arbor, MI
Sat Dec 13, 2008
Dear Daniel,
I see this differently than the other parties below. You had a verbal acceptance. Your offer must be in writing to be enforceable in Michigan. If it was, then you would have a case. Because the bank asset manager is bound to take the best offer, until his bank signs your offer, it is mandatory for the bank to look at offers that come in before signing.
You say the paperwork was delivered to the bank (not sure on the time) but until the bank signs it and you get this back to you, you do not have a TRULY accepted offer. VERBAL is not acceptance and your agent knows this. I am very sorry about the frustration and expense you have incurred. Working with the REOs is difficult at best. Warm regards from chilly Ann Arbor. http://www.BuyAnnArborHomes.com
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Todd Lands, Agent, Saline, MI
Fri Dec 12, 2008
I am sorry about your situation. It sounds like you did not have a Buyers Agent and you were using the listing agent top present your offer, is that correct?
It sounds like you had a good deal worked out for the house and the rug got pulled from under you feet. It really stinks, but it may have not been "illegal" but from your side of the story (& there are always two sides to a story (or more)) it sounds like it may have been unethical from the view point that you were treated unfairly.
One thing that sets REALTORS apart from the person selling aluminum siding (or anything else) is our "Code of Ethics" one part of our Code of Ethics is the golden rule: Due unto others as you would have them do unto you. REALTORS are bound to uphold a high level of ethics or be punished by their peers. You can call your local Board of REALTORS and/or ask for an opinion from their broker. Many factors come into my head when I think about your case is that; all real estate agreements need to be in writing to be binding (you have a lose verbal at best), all banks reserve the right to review multiple offers (and they did), it is common to ask for larger deposits than $300.00 to have an offer considered, the Listing agent owes their judiciary to the Seller (to get the most or the best terms for the Seller and he did).
I wish you luck in your quest for housing and suggest you find someone who will play on your side (as a buyer's agent) and help you understand the pitfalls of dealing with a bank.
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John Gitre, Agent, Canton, OH
Fri Dec 12, 2008
Dan, I can understand your frustration. The reality is most if not all of the banks I have dealt with have in their addendums that they will continue to look at any and all offers while they are negotiating with you. In their view, they do not have a binding offer until they have received their addendums with your signature and you have received them back with their signature. As it relates to the EMD and quick closing, that is not uncommon. Perhaps if you went back and looked at the listing there is a statement that says "$1000.00 minimum EMD to be held by listing office". Also, properties can have the priced lowered without advance notice to the listing agent, When it comes to REO properties, asset managers control pricing and timing of any reduction.
You should be entitled to your EMD back but I'm sorry to say that the other expenses may be lost to a lesson learned. I had a similar case happen to one of my buyers and in the end we found a better property for less money.
Did you discuss with your Realtor what you can expect to encounter when dealing with REO properties? Good luck and I'm sure you will be able to find another home similar or better.
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Ed & Cindy K…, Agent, Shelby Township, MI
Fri Dec 12, 2008
Hello Daniel I know exactly where you are coming from and it's getting worse and worse. Yesterday I was told by a bank agents secretary that the right hand does not know what the left hand is doing. As Mary said you can contact an attorney but today things are done really sloppy when it comes to bank agents. We just showed a home we were told was still available and when we arrived the buyer was there doing his inpsection. If you have the proper paperwork have your agent make a complaint to the board of REALTORS.

But I agree something needs to be done for sure. I just wrote a blog about banks and bank agents - http://tinyurl.com/6pvjdh
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Mary Novak, Agent, Brighton, MI
Fri Dec 12, 2008
Wow, this is crazy....not being an attorney, I think you might want to speak to a real estate attorney. If your offer (counter) was accepted, but not bottomlined, this is where it may get fuzzy. Other offers that came in after yours, I think would have to be back up offers. If this is bank owned, typically all correspondence are done via email for accuracy or tape recorded by the property owner. You might want to explore this further.

The banks have their own set of rules and basically, do whatever they want to do in today's market.

Best of luck, but I would definately, contact a real estate attorney if the property is that important to you.
Or as frustrating as this is, just move on and continue to look at other properties. There are a lot to choose from!
Web Reference:  http://www.MarvelousMary.com
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